Violante v Baum
Annotate this CaseDecided on May 9, 2005
Supreme Court, Richmond County
Michele Violante and VITTORIO VIOLANTE, Plaintiffs,
against
Dianne M. Baum and JOSEPH DECESARE, Defendants.
12193/03
Eric N. Vitaliano, J.
Upon the foregoing papers, defendants' motion for an order dismissing the complaint as against them on the ground that both plaintiffs failed to sustain a serious injury as defined by Insurance Law §5102 is granted.
Contrary to plaintiffs' position, defendants made a prima facie showing that neither of them sustained a serious injury within the meaning of Insurance Law §5102 as a result of plaintiffs' July 21, 2000 automobile accident through the submission of the affirmations of two medical experts, Dr. Gregory Montalbano, an orthopedist and Dr. Roger A. Berg, a radiologist. Their reports are annexed as Exhibits I, J, L and M to defendants' moving papers.
Dr. Montalbano examined plaintiff Vittorio Violante on July 23, 2004 and concluded after a review of his medical records, which included the results of Electrophysiological testing, an MRI, doctors' reports and hospital records, that no orthopedic disability had resulted from the accident. Dr. Montalbano found normal range of motion in all tests administered with no evidence of muscle spasms. Spurlings maneuver and straight leg testing were both negative and Dr. Montabano found Mr. Violante to have fully recovered from cervical, thoracic and lumbar sprains and able to perform the activities of daily living without restriction.
In his September 20, 2004 report, Dr. Berg interpreted the cervical and lumbar MRIs taken of Mr. Violante on December 8, 2000 and December 27, 2000 respectively as well as summarizing the medical reports of other physicians who treated Mr. Violante after the accident. Dr. Berg found that the cervical and lumbar MRIs which were taken of Mr. Violante in [*2]December 2000 revealed no discernible injuries to his lumbar or cervical spine, discs or nerve ends as a result of this collision. He further stated that in his opinion "this patient has been overtested and overtreated and he found "no legitimate reason for Mr. Violante to be sent for the MRI exams".
Dr. Montalbano examined plaintiff Michele Violante on July 23, 2004. He diagnosed her with cervical and lumbar sprains which had resolved by the time of his examination. Although he found some tenderness and some diminished flexion during her cervical examination, he concluded that while she "continues to have some subjective complaints of pain... these are out of proportion to objective findings"(see Defendants' Exhibit "L"). Dr. Montalbano further noted that there was no persistent disability related to the injuries sustained and that the diagnosis of multiple disc herniation is not consistent with the clinical evaluation which he performed (id.).
Dr. Berg concluded after reviewing Mrs. Violante's cervical MRI that there is no acute disc herniation and that while a tiny bulge exists at L4-5, there is no herniation, spinal stenosis or spondylolisthesis (see Defendants' Exhibit "M"). He noted that she had mild degenerative changes which were of no clinical significance.
Based on all of the foregoing, defendants have made a prima facie showing that plaintiffs did not sustain a "serious injury" within the meaning of section 5102(d) of the Insurance Law (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 746 NYS2d 865), thereby shifting the burden of going foward with proof sufficient to require a trial on that issue to the plaintiffs (see Gaddy v Eyler, 79 NY2d 955, 582 NYS2d 990). In the opinion of this Court, that burden has not been met by either plaintiff.
In opposition, each plaintiff submitted a report from Dr. Joseph Fricano, a chiropractic neurologist. The Court notes that Dr. Fricano has not treated nor seen plaintiff Michele Violante since 2001. His last treatment of Vittorio Violante was apparently in October 2002 and Dr. Fricano has not seen nor treated Mr. Violante since then. Where there is any lengthy gap in treatment, the gap must be explained to dispel the suggestion that the injury was slight or had resolved and that no treatment was required. (see Crespo v. Kramer, 295 AD2d 467, 744 N.Y.S2d 187 (2d Dept. 2002); Grossman v. Wright, 268 AD2d 79, 707 NYS2d 233 (2d Dept 2000). The Court of Appeals recently reiterated in Pommells v. Perez, 2005 WL 975859 (April 28, 2005), the long-standing proposition that "a plaintiff who terminates therapeutic measures following the accident, while claiming 'serious injury' , must offer some reasonable explanation for having done so". As no explanation for the cessation in treatment is offered by either plaintiff, the Court finds that Dr. Fricano's reports are legally insufficient to provide objective evidence of the claimed physical limitations and/or their duration or their connection to the accident (see Bent v. Jackson, 15 AD3d 46, 788 NYS2d 56 (1st Dept. 2005); Guzman v Michael Mgt. 266 AD2d 508, 698 NYS2d 719 [2d Dept 1999]). Additionally, although the radiology report of the MRI performed on Michele Violante indicates that a disc herniation exists, the mere existence of a bulging or herniated disc is not conclusive evidence of a "serious injury" in the absence of objective evidence of a related disability and restriction (see Pommells, supra ; also Howell v Reupke, 16 AD3d 377, 790NYS2d 703 [2d Dept 2005]). Plaintiffs have submitted no such objective evidence.
Also, Mr. Violante testified at his examination before trial that he saw Dr. Fricano for about six months prior to the accident after falling down some stairs (see Defendants' Exhibit "F" pp. 27, 28). Dr. Fricano never details the reason for these visits and next refers to an evaluation of Mr. Violante conducted on October 12, 2000 (initially misstated as October 12, [*3]2002), i.e., approximately three months after the accident, but fails to mention the earlier fall and treatment or to take them into account when evaluating the consequences of this accident (see Howell v Reupke, 790 NY2d at 704; Dimenshteyn v Caruso, 262 AD2d 348, 694 NYS2d 66 [2d Dept 1999]). Furthermore, while he states that he treated this plaintiff some 80 times from the date of the occurrence, his billing records are inconsistent with Mr. Violante's deposition testimony and fail to specify whether the treatments for plaintiff's earlier fall are included in this number. Under all of these circumstances, Dr. Fricano's conclusory statement that the injuries for which he treated Vittorio Violante were causally connected to the July 12, 2000 accident are wholly speculative and without merit.
Finally, plaintiffs' own affidavits fail to establish that either one of them was unable to perform substantially all of their normal activities for 90 out of the 180 days following the accident. (Philippe v. Ivory, 297 AD2d at 667, 747 NYS2d 184 [2d Dept. 2002]; Savattere v. Barnathan, 280 AD2d 537, 720 NYS2d 386 [2d Dept. 2001]). In this regard, Vittorio Violante testified at his deposition that he returned to work immediately after the accident, and that he was able to perform work around the house within three to four weeks thereafter (see Defendants' Exhibit "F" pp. 37-41). These statements directly contradict his affidavit submitted in opposition to defendants' motion, which attempts to raise unfounded issues of fact in an effort to avoid the consequences of his earlier testimony (see Richter v Collier, 5 AD3d 1003, 773 NYS2d 645 [4th Dept 2004]). The affidavit is for naught.
Similarly, Michele Violante testified at her deposition that within a couple of weeks of the accident she was able to resume most of her regular activities (see Defendants' Exhibit "E"), thereby undermining any present claim to have suffered a serious injury based upon the 90/180 day provision. Dr. Fricano's reliance on the affidavits of Michele Violante and Vittorio Violante in which both plaintiffs self-servingly aver that they were unable to carry on their usual activities for at least four months after the accident renders Dr. Fricano's opinion that "the curtailment" of their activities is the "natural and expected medical consequence" of their injuries without foundation in fact as he never mentions in any of the medical reports submitted that they were medically found to be unable to carry on their normal activities during his treatment.
Inasmuch as neither plaintiff has submitted any competent objective medical evidence of a "serious injury" within the meaning of section 5102 of the Insurance Law, it is hereby
ORDERED, that defendants' motion for summary judgment is granted and the complaint is dismissed; and it if further
ORDERED, that the Clerk shall enter judgment accordingly.
ENTER,
JSC
Dated: May 9, 2005
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